[ EDITORIAL ]

Medical-Necessity Defense: Marijuana Common Sense

Published: Friday, April 12, 2013 at 12:01 a.m.

Last Modified: Thursday, April 11, 2013 at 11:29 p.m.

Every day, state prosecutors use their judgment — deciding, for example, whether or not to file criminal charges in court.

The State Attorney's Office for the 12th Circuit — which includes Manatee, Sarasota and DeSoto counties — exercised good judgment in an exceptional case that generated headlines and further elevated the debate over medical uses of marijuana.

Brian A. Iten, division chief for State Attorney Ed Brodsky, announced April 2 that criminal charges will not be brought against Robert Jordan, a 64-year-old resident of northeast Manatee County.

It was a sensible, thoughtful decision based on facts and Florida court precedent.

BACKYARD PLANTS

The case began when Manatee sheriff's deputies, responding to a tip, found that Jordan was cultivating a small quantity of marijuana — two plants and some seedlings — in his backyard in Parrish.

Jordan told deputies that he grew the pot to provide medical relief to his wife, Cathy, who has Amyotrophic Lateral Sclerorsis — also known as Lou Gehrig's disease.

The Sheriff's Office responded reasonably, not making a scene or arresting Jordan. Instead, deputies referred the case to the State Attorney's Office for consideration.

The Jordans are vocal activists in favor of legalizing marijuana for medicinal purposes, a fact that drew even more attention to their case.

Prosecutors took their time, investigated and carefully deliberated the case. They initially offered not to file criminal charges if Jordan agreed to stop growing the pot. Jordan declined, however, maintaining that the drug helped mitigate the symptoms of his wife's incurable disease.

The State Attorney's Office eventually declined to prosecute — for good reasons, outlined in a memo written by Iten.

In that document, Iten explained that he reviewed Cathy Jordan's medical records, with her consent. Iten also spoke to Jordan's neurologist, who confirmed:

"The standard drugs used to treat the symptoms of ALS are very dangerous, with serious side effects, including death.

"For Mrs. Jordan, cannabis provides relief without the side effects associated with her other medical options."

Iten's memo then cited several key points in the Jenks vs. State case, decided by the First District Court of Appeal in 1991:

The prospective defendant could not accomplish the same objective using a "less offensive" available alternative.

The "evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it."

In sum, Iten wrote of Jordan, "the state lacks a good-faith belief it can overcome a medical-necessity defense in this matter."

The division chief's memo demonstrates that the State Attorney's Office did not take the easy way out in this case. The reasoning in the memo doesn't condone or ignore an otherwise illegal activity. Instead, it focuses on the specific conditions that made for a sound decision to decline prosecution.

PROSECUTOR'S CHALLENGES

State Attorney Brodsky has previously stated that Florida should revisit its drug laws, specifically as they relate to the use of marijuana for medical reasons. For fear of political repercussions, the Legislature is highly unlikely to take up a bill that would allow marijuana for medicinal purposes — even though polls suggest strong majorities of Floridians support such a move.

The Legislature's reticence is preventing a reasoned debate, and blocks the potential to carefully craft laws that would provide individuals with access to alternative drugs such as marijuana, give prosecutors clearer legal guidance and enact protections against abuse.

As is often the case when the Legislature fails to tackle tough issues, there is a movement among Floridians to take matters into their own hands through a proposed constitutional amendment, subject to a statewide referendum.

If an initiative to allow medical marijuana makes the ballot for consideration by voters, Floridians will have the forum for a debate that the Legislature refuses to provide.

<p>Every day, state prosecutors use their judgment — deciding, for example, whether or not to file criminal charges in court.</p><p>The State Attorney's Office for the 12th Circuit — which includes Manatee, Sarasota and DeSoto counties — exercised good judgment in an exceptional case that generated headlines and further elevated the debate over medical uses of marijuana.</p><p>Brian A. Iten, division chief for State Attorney Ed Brodsky, announced April 2 that criminal charges will not be brought against Robert Jordan, a 64-year-old resident of northeast Manatee County.</p><p>It was a sensible, thoughtful decision based on facts and Florida court precedent.</p><p>BACKYARD PLANTS</p><p>The case began when Manatee sheriff's deputies, responding to a tip, found that Jordan was cultivating a small quantity of marijuana — two plants and some seedlings — in his backyard in Parrish.</p><p>Jordan told deputies that he grew the pot to provide medical relief to his wife, Cathy, who has Amyotrophic Lateral Sclerorsis — also known as Lou Gehrig's disease.</p><p>The Sheriff's Office responded reasonably, not making a scene or arresting Jordan. Instead, deputies referred the case to the State Attorney's Office for consideration.</p><p>The Jordans are vocal activists in favor of legalizing marijuana for medicinal purposes, a fact that drew even more attention to their case.</p><p>Prosecutors took their time, investigated and carefully deliberated the case. They initially offered not to file criminal charges if Jordan agreed to stop growing the pot. Jordan declined, however, maintaining that the drug helped mitigate the symptoms of his wife's incurable disease.</p><p>The State Attorney's Office eventually declined to prosecute — for good reasons, outlined in a memo written by Iten.</p><p>In that document, Iten explained that he reviewed Cathy Jordan's medical records, with her consent. Iten also spoke to Jordan's neurologist, who confirmed:</p><p>"The standard drugs used to treat the symptoms of ALS are very dangerous, with serious side effects, including death.</p><p>"For Mrs. Jordan, cannabis provides relief without the side effects associated with her other medical options."</p><p>Iten's memo then cited several key points in the Jenks vs. State case, decided by the First District Court of Appeal in 1991:</p><p>The prospective defendant could not accomplish the same objective using a "less offensive" available alternative.</p><p>The "evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it."</p><p>In sum, Iten wrote of Jordan, "the state lacks a good-faith belief it can overcome a medical-necessity defense in this matter."</p><p>The division chief's memo demonstrates that the State Attorney's Office did not take the easy way out in this case. The reasoning in the memo doesn't condone or ignore an otherwise illegal activity. Instead, it focuses on the specific conditions that made for a sound decision to decline prosecution.</p><p>PROSECUTOR'S CHALLENGES</p><p>State Attorney Brodsky has previously stated that Florida should revisit its drug laws, specifically as they relate to the use of marijuana for medical reasons. For fear of political repercussions, the Legislature is highly unlikely to take up a bill that would allow marijuana for medicinal purposes — even though polls suggest strong majorities of Floridians support such a move.</p><p>The Legislature's reticence is preventing a reasoned debate, and blocks the potential to carefully craft laws that would provide individuals with access to alternative drugs such as marijuana, give prosecutors clearer legal guidance and enact protections against abuse.</p><p>As is often the case when the Legislature fails to tackle tough issues, there is a movement among Floridians to take matters into their own hands through a proposed constitutional amendment, subject to a statewide referendum.</p><p>If an initiative to allow medical marijuana makes the ballot for consideration by voters, Floridians will have the forum for a debate that the Legislature refuses to provide.</p>